ATLANTA — Fulton County prosecutors have lost a legal skirmish to get an out-of-state witness to testify before the Fulton County special purpose grand jury investigating former President Donald Trump and his allies.
The recent ruling by the Court of Criminal Appeals of Texas is a victory for Dallas-based attorney and podcast host Jacki Pick and could also be good news for Houston-based attorney Sidney Powell, who has been given her own out-of-state subpoena to come testify.
The special grand jury, convened in May, is investigating what happened in Georgia in the weeks and months after the 2020 presidential election.
Pick testified at a state legislative hearing on Dec. 3, 2020, and presented selected portions of security video footage taken election night at State Farm Arena, according to court filings. It purported to show election workers producing “suitcases” of unlawful ballots to be counted in favor of Biden. The doctored video has been repeatedly debunked by both state and federal authorities.
On July 5, Fulton Superior Court Judge Robert McBurney signed a certificate finding Pick was a “necessary and material” witness who needed to come to Georgia and testify. Pick’s attorneys then filed a challenge before a Dallas County, Texas, judge, who ordered Pick to go to Atlanta and testify.
Pick then took her case to the Court of Criminal Appeals. On Sept. 1, the court issued an opinion that noted Pick’s subpoena required her to testify sometime between July 12 and Aug. 31. Because that period had elapsed, it was now a moot issue and she was no longer required to go to Atlanta, the court ruled.
Because the nine-member court did not rule on the merits of Pick’s challenge, the Fulton DA’s office can petition McBurney for a new out-of-state subpoena for Pick. But Fulton prosecutors could be in for an uphill climb.
In two of the opinions issued in Pick’s case, a majority of the Court of Criminal Appeals seems poised to deny any future out-of-state subpoena petition.
Judge Kevin Yeary, joined by three colleagues, wrote that witnesses from Texas subpoenaed to testify in other states must do so when those grand jury proceedings are “criminal” in nature. Because the special purpose grand jury in Fulton lacks the power to indict, it does not appear to fit the criteria required to compel Pick’s testimony, Yeary wrote.
This is contrary to a ruling issued last week by McBurney. He ruled Fulton’s special purpose grand jury is conducting a criminal investigation when he denied Gov. Brian Kemp’s motion to quash his subpoena to testify. McBurney ruled Kemp must honor his subpoena after the November general elections.
The other Court of Criminal Appeals opinion was written by Judge Bert Richardson, who said he shared the same concerns expressed by Yeary. And he noted that, in 1951, Texas and Georgia entered into an interstate agreement to secure witnesses from the other states to appear before their grand juries. Georgia’s special purpose grand juries, which were first established in 1974, were not part of that agreement, Richardson wrote.
With five of the court’s nine judges expressing skepticism over the ability of a Georgia special purpose grand jury to compel testimony from witnesses in Texas, this looming precedent could benefit Powell. She worked briefly on the Trump campaign’s legal team attempt to overturn the 2020 election outcome.
Powell is also part of a Georgia Bureau of Investigation probe into an alleged breach of elections data in Coffee County in January 2021. Previously disclosed documents indicate that Powell paid Atlanta tech firm SullivanStrickler for the data extraction.
Security camera video made public Tuesday shows that a phony elector who tried to reverse the results of the 2020 presidential election escorted a group of computer experts into the elections office in Coffee County. The recording is the latest evidence of an effort by supporters of Trump to take sensitive data from voting equipment manufactured by Dominion Voting Systems in several states.
Powell made unfounded claims against Dominion, which has sued her for $1.3 billion in damages. She is scheduled to appear before the Fulton special purpose grand jury on Sept. 22.
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